An immigration perspective

Following the American election, the profession saw a wave of enquiries from US citizens, especially those with existing links to the UK. Jacqueline Moore (immigration partner at Thorntons) shares the three key issues she believes will help solicitors across the sector support US citizens at this historical juncture.

As lawyers, we are all used to political events influencing our clients’ needs. The recent election of the first Labour UK Government in 14 years has signalled a sea change for employment law practitioners, while the recent budget has seen client priorities shifting for many in property, private client and a host of other practice areas. As immigration solicitors, we often feel the winds of change blowing from overseas as well as at home. The American election last was no exception, as we saw a wave of enquiries from US citizens, especially those with existing links to the UK.

Colleagues across other practice areas may also have noticed this trend, with American clients possibly expressing more of an interest than they had previously in making the UK their permanent home. With that in mind, we are sharing insight on three key issues that we believe will help solicitors across the sector support US citizens at this historical juncture.

Digitalisation – eVisas and Electronic Travel Authorisations

Historically, the Home Office issued proof of immigration status via visa ‘vignettes’ and stamps in individuals’ passports. In 2015, this system was replaced by Biometric Residence Permits – plastic cards not dissimilar to a driving licence which showed the start and end date of the individual’s immigration, a photo of the visa holder and some basic personal information.

From the new year, the system will change again with the introduction of eVisas (see LSS Journal article, The end of a BRP era, Anna Knox, 14 October 2024). From 1 January 2025, all those subject to immigration control will require to hold an eVisa to prove their immigration status. This marks a huge milestone in the shift to an entirely digital immigration system. There have been a whole host of issues with the shift to eVisas, including incorrect details being displayed on the eVisa and delays of weeks or months in an individual’s eVisa becoming available once they have followed the Home Office’s instructions for access.  For further information, see- Online immigration status (eVisa) - GOV.UK (www.gov.uk).

As if one huge change were not enough, January will also see the roll out of the Electronic Travel Authorisation scheme to over 40 new nationalities. This scheme, which is already in operation for nationals of Bahrain, Kuwait, Oman, Qatar, Saudia Arabia and United Arab Emirates, requires non-visa nationals (those who do not require a visit visa before a short trip to the UK) to apply for and be granted a pre-travel authorisation. This will include US citizens, who can apply for an ETA from 27 November and will need to hold an ETA for travel from 8 January 2025. EU and EEA citizens will need an ETA from April 2025 and can apply from early March.

We are expecting travel into the UK in January to involve delays and possible disruption, especially for those who do not hold British passports. Solicitors can support American and other international clients by letting them know about these changes – whether they are living in the UK on a visa or planning a visit in the near future. For further information, see Apply for an electronic travel authorisation (ETA) - GOV.UK (www.gov.uk).

Caution those who want to ask forgiveness instead of permission

American citizens are ‘non-visa nationals’. This means that they do not need a visa to travel to the UK to visit (although they will shortly need an Electronic Travel Authorisation, as set out above). Many of us will be familiar with the American client who owns property here but remains resident in the US or in some other third country. Many Americans enjoy prolonged visits to the UK, for golf in St Andrews, extended getaways in the Highlands or summers in Edinburgh enjoying the Fringe.

There is a danger with these internationally mobile and travel-savvy clients that they will tend towards asking for forgiveness for immigration transgressions – when they should be requesting permission.

Careful planning is essential for a move to the UK and even for spending extended periods here. This is because the immigration rules explicitly prohibit individuals from taking up ‘de facto’ residence through frequent and successive visits. Precisely when someone will be considered to be using frequent and successive visits to live in the UK (i.e. breaching the terms of their permission as a visitor) is a grey area which lacks clarity in the rules and Home Office guidance – ultimately it often comes down to the discretion of the individual Border Force officer involved.

There is little doubt that the introduction of Electronic Travel Authorisations for non-visa nationals will provide the Home Office with an opportunity to monitor visitor activity.  It is likely to lead to increase in the number of frequent visitors who are subject to questioning at the border – possibly resulting in their being refused entry. This can have long term impacts on future visa applications and visits to the UK.   

Anyone who makes frequent or lengthy trips to the UK as a visitor should carry out a careful risk assessment and should make themselves aware of the rules around visiting the UK.  US citizens should also be aware of a golden immigration rule: you cannot come to the UK as a visitor and then switch into a different visa route once in the UK.

British passports from British-born grandparents

The majority of enquiries we have received in the last week have been from Americans with Scottish heritage who are curious to know whether they qualify for British citizenship. For many, this is an attractive option, as it does not require a commitment to moving across the Atlantic now – but leaves the option open for the future.

Recent changes to the law resulting from litigation and legislative amendments have opened up a pathway for those excluded from British citizenship due to historic gender discrimination in the law. In short, this means that those with British maternal grandparents or a paternal grandmother may have a route to British citizenship – if they were born before January 1988. Ironically, this pathway is not open if the British-born grandparent in question is the individual’s paternal grandfather.

Those who cannot benefit from this ‘double descent’ route to citizenship but are considering relocation generally fall into two categories. First, there are those with a British partner or British child who may be eligible for a family visa. Second, there are those with no British family or ancestry but who are open to looking at visa options which allow them to work in the UK. Depending on the individual circumstances, it may be worth investigating the High Potential Individual visa (open to those who have graduated from a top university in the last five years) or whether the client could establish an innovative new company or expand an existing business to the UK market. For a limited number of people, in the digital tech and arts sectors, a Global Talent visa may be an option. Finally, in Scotland there are many businesses in both the hospitality and care sector who offer sponsorship for hard to fill skilled positions in the hospitality and care sector.   

Colleagues in Scotland across all sectors, will deal with international clients or will act for clients with an international workforce. The most important message right now is making sure that people are aware of the digitalisation of the border, and what that means for them- whether it is a requirement to obtain an eVisa (by 31 December 2024) or a requirement to obtain an Electronic Travel Authorisation in advance of travel.

Written by Jacqueline Moore, Immigration partner, Thorntons